BEATON & BEATON (No.2) - [2020] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEATON & BEATON (No.2)

[2020] FCCA 2485

Catchwords:
FAMILY LAW– Application for a stay– where interim relocation orders were made – where a Notice of Appeal has been filed against those orders – where the application for a stay is dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Morgan & Miles [2007] FamCA 1230

Applicant:

MR BEATON

Respondent:

MS BEATON

File Number:

SYC 7906 of 2019

Judgment of:

Judge Boyle

Hearing date:

24 August 2020

Date of Last Submission:

24 August 2020

Delivered at:

Sydney

Delivered on:

24 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr Sansom SC

Solicitors for the Applicant:

Abrams Turner Whelan Family Lawyers

Counsel for the Respondent:

Mr Lethbridge SC

Solicitors for the Respondent:

De Saxe O’Neill Family Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

The Application in a Case filed by the Father on 17 August 2020 is dismissed.
The Mother’s costs of today are reserved.
The matter remains listed for mention on 19 November 2020 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Beaton & Beaton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7906 of 2019

MR BEATON

Applicant

And

MS BEATON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

This is an application by the father for a stay of orders made on 14 July 2020. The orders permitted the mother to relocate the parties’ two children, X, aged 5, and Y, 18 months, to Victoria to live with her parents from 17 October 2020, or when the border between NSW and Victoria reopens, whichever is the later. The orders provide for time arrangements between the children and their father, in the circumstances where the parties are in Sydney, and when the mother and children relocate to Victoria.
I have been taken by senior counsel for both parties to the principles to be applied to a stay. The onus rests on the applicant to establish proper grounds for a stay. The respondent is entitled to the benefit of the judgment, having obtained it. The respondent is also entitled to assume that the judgment is correct.
I need to be satisfied of the bona fides of the applicant in the application for a stay. I do not have any issue with respect to the applicant’s bona fides. He has filed the application for an appeal. It is unclear why he has not yet applied for expedition of the appeal. He indicated that he will do so within seven days. He is complying with the requirements of the appeal process, so that the matter will be ready when the Full Court is available to hear it.
The stay may be granted on terms. This is not the kind of matter where that is an option. Other than the guarantee that the appellant will apply for expedition, there are no terms which weigh…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BEATON & BEATON (No.2)

Details

AGLC: Beaton and Beaton (No.2) [2020] FCCA 2485
Case: [2020] FCCA 2485
Decision Date: 24 August 2020

CaseChat Overview and Summary

In *Beaton & Beaton (No.2)*, Judge Boyle considered an application by the Father for a stay of interim relocation orders previously made by the court. A Notice of Appeal had been filed by the Father against these interim orders.

The central legal issue before the court was whether to grant a stay of the interim relocation orders pending the determination of the Father's appeal.

Judge Boyle dismissed the Father's application for a stay. While the specific reasoning is not detailed in the provided text, the outcome indicates that the court was not satisfied that the grounds for granting a stay had been met. The court noted that publication of the judgment under the pseudonym *Beaton & Beaton (No.2)* was approved pursuant to s.121(9)(g) of the *Family Law Act 1975* (Cth).

The court ordered that the Father's application be dismissed, reserved the Mother's costs of the hearing, and confirmed the matter would be mentioned on 19 November 2020.

Orders

Orders of the court

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Application in a Case filed by the Father on 17 August 2020 is dismissed.

2. The Mother’s costs of today are reserved.

3. The matter remains listed for mention on 19 November 2020 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Beaton & Beaton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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